Opinion
A-3610-19
04-06-2022
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LESTER DENNARD, Defendant-Appellant.
Zachary Markarian, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Zachary Markarian, of counsel and on the briefs). Daniel Finkelstein, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Daniel Finkelstein, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2022
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 19-07-0646.
Zachary Markarian, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Zachary Markarian, of counsel and on the briefs).
Daniel Finkelstein, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Acting Attorney General, attorney; Daniel Finkelstein, of counsel and on the brief).
Before Judges Rothstadt and Natali.
PER CURIAM
After a deliberating juror was dismissed for personal reasons, a reconstituted jury found defendant guilty of four possessory weapons-related offenses. The court sentenced defendant to an aggregate five-year custodial term with a five-year period of parole ineligibility and assessed applicable fines and penalties.
Before us, defendant argues:
POINT I
THE MUTUALITY OF JURY DELIBERATIONS WAS DESTROYED BY THE TRIAL COURT'S FAILURE TO CHARGE THE JURY TO START ANEW BEFORE DELIBERATIONS BEGAN FOLLOWING THE SUBSTITUTION OF AN ALTERNATE.
POINT II
THE TRIAL COURT ERRED IN CHARGING THE JURY REGARDING CONSTRUCTIVE POSSESSION WHERE THE STATE'S CASE DEPENDED ENTIRELY ON PROVING ACTUAL POSSESSION AND THE STATE DID NOT PRESENT ANY EVIDENCE OF "DOMINION OR CONTROL" SUFFICIENT TO SUSTAIN A FINDING OF CONSTRUCTIVE POSSESSION.
We agree with defendant's first point and are persuaded that the court's failure to issue a timely instruction that clearly and unequivocally informed the reconstituted jury to begin its deliberations anew constituted plain error. We accordingly vacate defendant's convictions and remand for a new trial. In light of our decision, we do not reach defendant's second point.
I.
The Millville police arrested defendant after they saw him attempt to secrete what they believed to be a weapon in a nearby vehicle. A Cumberland County grand jury later charged defendant with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree possession of a defaced weapon, N.J.S.A. 2C:39-9(e) (count two); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1) (count four).
We derive the following facts regarding defendant's arrest and conviction from the trial record. In May 2019, Sergeant Jason Vinzinski, Sergeant Robert Runkle, and Officer Israel Trejo of the Millville Police Department were on patrol in an unmarked vehicle in the parking lot of an apartment complex. The officers all recognized defendant from prior interactions, and also knew he was not permitted to be at that particular location based on the apartment complex's manager banning him from the premises.
Defendant was seen standing with another individual next to two cars, and talking to a woman, Talina Nottingham, who was sitting in the driver's seat of one of the vehicles. Sergeant Vinzinski exited his vehicle and walked toward defendant, who appeared surprised to see him. Defendant then reached near his waist for what Sergeant Vinzinski and Officer Trejo observed to be a "black object," entered Nottingham's car, placed the black object on the rear floor of the vehicle, and exited.
Sergeant Vinzinski approached the car, shined a light inside and observed a "black semiautomatic handgun" near the back seat. After Sergeant Vinzinski announced he discovered a gun, defendant stated, unsolicited, that the gun was not Nottingham's. He was immediately arrested.
Defendant's entry into the vehicle was confirmed by surveillance tape, as well as Nottingham's trial testimony. Nottingham also testified that she was unaware defendant was carrying a gun and was "surprised" the police found a weapon in her car. A later analysis of the gun revealed it was operable, was loaded with fifteen rounds of ammunition, and the serial number had been defaced.
DNA testing of the weapon and magazine failed to produce a sample of sufficient quality or quantity that would permit comparison with defendant's DNA. Defendant testified at trial and admitted that he briefly entered Nottingham's car, but denied possessing a gun, or that he removed anything from his waistband.
After the close of all evidence the court charged the jury. The original jury deliberated for approximately two hours and ten minutes over the course of two days. During this time, it requested to view the original police report, as well as a playback of the surveillance video, and asked to listen again to the testimony of the three police officers and defendant.
On the second day of deliberations, at approximately 12:00 p.m., one of the jurors informed the court that she received a text message that her father was seriously ill. The court addressed the issue with the juror and the parties and decided to dismiss the juror and replace her with an alternate.
After the court selected the alternate, it excused the now reconstituted jury for lunch at 12:15 p.m. The court did not, however, charge the jury that they should begin deliberations anew with the replaced juror. Instead, the court twice told the jury that it should commence its deliberations immediately after it returned from lunch at 1:15 p.m. The court specifically stated, "as soon as you come back and as soon as you're all in the room, you can commence deliberations; all right?" The court emphasized that point again by directing the reconstituted jury to "commence your deliberations as soon as you're all back and as soon as the jury room door is closed."
At approximately 1:40 p.m., the court went on the record to swear in a new jury aide, at which time it observed that "apparently the jury has decided to start deliberating." The court then asked the jury aide "to go instruct the jury to stop deliberating because [it had] to give them one additional instruction." At this point, over twenty-five minutes had elapsed since the reconstituted jury had returned from lunch.
Before the jury aide could inform the reconstituted jury to stop deliberating, it sent a note to the court. The court failed to mark the note as a court exhibit or read its contents into the record. Instead, the court stated it refused to even look at the note but commented nevertheless that "the jury is not supposed to be telling me what their preliminary vote is."
As the jury's note is not part of the appellate record, and the court maintained it did not look at the communication, we cannot discern the basis for the court's substantive comment that the jury should not have told it of any preliminary vote.
At 1:49 p.m., the court instructed the jury to stop deliberating because it realized it failed to issue the necessary model jury instruction regarding reconstituted juries and specifically the requirement that they begin deliberations anew. The court explained its oversight by noting it had "never had to empanel an alternate juror" before, and although it "knew there was a[n applicable] charge," it "couldn't . . . remember what it was."
The court then provided the reconstituted jury with Model Jury Charge (Criminal), "Judge's Instructions When Alternate Juror Empaneled After Deliberations Have Begun" (rev. March 14, 2016), which informed the jury, among other instructions, that they "must start [their] deliberations over again" with the alternate juror. At 1:55 p.m., the jury resumed deliberations.
After the reconstituted jury left the courtroom, defense counsel moved for a mistrial on two grounds. First, counsel noted the dismissed juror was the only Black juror on the original jury, and the reconstituted jury was now all white. Defendant argued the new racial composition of the panel was unfair, as he is Black, and had a right to be judged by a jury of his peers. Second, counsel raised a concern that the dismissed juror had clearly received an outside communication, as she could not otherwise have learned of her father's medical condition, and may have relayed information to the other jurors, contrary to the court's general instructions.
The court denied defendant's motion and concluded that the "communication with somebody outside the courthouse . . . in this day and age is not all that unusual." It further determined that the lack of diversity on the reconstituted jury was not due to any "sinister or improper motive" on the part of the State, but rather, was the result of a lack of diversity in the original jury pool.
At 2:40 p.m., approximately forty-five minutes after the court gave the appropriate model jury instruction, the reconstituted jury reached a verdict and convicted defendant of counts one through three. The same jury later found defendant guilty on count four, after deliberating for an additional five minutes.
The court sentenced defendant on count one to five years imprisonment with three-and-a-half years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), and merged count two with count one. The court also imposed an eighteen-month term on count three and a five-year term with a five-year period of parole ineligibility on count four, ordered all terms to run concurrently, and assessed applicable fines and penalties. This appeal followed.
II.
In defendant's first point, he argues the court failed to charge properly the reconstituted jury "before its deliberations began [which] critically damaged the integrity of the deliberative process." He further contends the court's later instruction was inadequate because by the time the court properly instructed the jury in accordance with the model charge, the reconstituted jury "had already engaged in a substantive discussion of the case and had even taken a preliminary vote." We agree.
We note that defendant has not renewed the arguments raised in support of his motion for a mistrial, and instead limits his contentions to those errors in the court's jury instructions as detailed in points one and two. We limit our discussion accordingly.
Rule 1:8-2(d)(1) vests in the trial court the discretion to retain alternate jurors after deliberations begin, to excuse a juror who is unable to continue, and to substitute an alternate for the excused juror. If a new juror is empaneled after the initial jury has commenced deliberations, the court is required to instruct the reconstituted jury to deliberate anew. As the Rule provides:
Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
[Id. (emphasis added).]
"The Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury." State v. Valenzuela, 136 N.J. 458, 467 (1994). Errors in the sensitive area of jury substitution are "cognizable as plain error." State v. Corsaro, 107 N.J. 339, 346 (1987). This is so because "[t]he constitutional guarantee of a jury trial in criminal causes . . . is violated unless the verdict is the product of [twelve] jurors who have heard all the evidence and arguments and who have deliberated together to reach a unanimous decision." State v. Lipsky, 164 N.J.Super. 39, 45 (App. Div. 1978); see also State v. Trent, 79 N.J. 251, 257 (1979); State v. Milton, 178 N.J. 421, 432 (2004) ("As an essential component of an accused's right to a jury trial, the right to a unanimous verdict is firmly rooted in our rules of procedure and our decisional law.").
Our Supreme Court has affirmed that substituting a juror after deliberations have begun does not offend the Constitution. See State v. Miller, 76 N.J. 392, 406-07 (1978). In doing so, however, the Court emphasized the need to assure that the reconstituted jury starts deliberations anew and to clearly instruct it accordingly. Ibid. Specifically, the Miller Court explained:
We find that Rule 1:8-2(d) in providing that for good cause shown, an alternate juror may be substituted for a regular juror after deliberations have begun, does not offend our constitutional guaranty of trial by jury.
Certainly good cause appeared when the juror in question stated that in his then nervous and emotional condition, he did not think he could render a fair verdict. Of course, when an alternate juror is so substituted, the jury must be instructed in clear and unequivocal terms that it is to begin its deliberations anew and that, as the trial judge stated herein, "you are in effect going to have to start over."
[Ibid.]
As our Supreme Court further observed in Trent:
It is not enough that [twelve] jurors reach a unanimous verdict if [one] juror has not had the benefit of the deliberations of the other [eleven]. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the [eleven] others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by [twelve] jurors who have heard all the evidence and argument and who together have deliberated to unanimity.
[Trent, 79 N.J. at 256 (quoting People v. Collins, 552 P.2d 742, 746 (Cal. 1976), cert. denied, 429 U.S. 1077 (1977)).]
Because a clear and unequivocal instruction is essential to assure that all twelve members of the reconstituted jury deliberate together, the Trent Court adopted the prescriptions set forth by the California Supreme Court in Collins:
[T]he court [should] instruct the jury to set aside and disregard all past deliberations and begin deliberating anew. The jury should be further advised that one of its members has been discharged and replaced with an alternate juror as provided by law; that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had.
[Trent, 79 N.J. at 256 (quoting Collins, 552 P.2d at 747).]
Our model criminal jury charge embodies these dictates and instructs as follows:
As you know, Juror # was excused from the jury. An alternate juror has been selected to take his/her place. The reason that he/she was excused was entirely personal to him/her; it had nothing to do with his/her views on this case or his/her relationship with the other members of the deliberating jury. Please do not speculate on the reason why that juror was excused.
As of this moment, you are a new jury, and you must start your deliberations over again. The parties have the right to a verdict reached by twelve jurors who have had the full opportunity to deliberate from start to finish.
The alternate juror has no knowledge of any earlier deliberations. Consequently, the new deliberating jury must start over at the very beginning of deliberations. Each member of the original deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my instructions to you. You must give no weight to any opinion expressed by Juror # during deliberations before that juror was excused. Together, as a new jury, you must consider all evidence presented at trial as part of your full and complete deliberations until you reach your verdict.
[Model Jury Charge (Criminal), "Judge's Instructions When Alternate Juror Empaneled After Deliberations Have Begun" (rev. March 14, 2016).]
After considering the aforementioned authority, we are satisfied that the court failed to express in "clear and unequivocal terms," see Miller, 76 N.J. at 407, that the reconstituted jury should begin deliberations anew. By giving the model instruction after the reconstituted jury had already begun their deliberations, the court failed to create "an environment so that the mutual or collective nature of the jury's deliberations is preserved and remains intact until a final determination is reached." Corsaro, 107 N.J. at 349. As a result, defendant's convictions and sentences must be vacated.
We reach this conclusion because it is undisputed that the jury deliberated for over twenty-five minutes without being advised to restart its deliberations. While this period may appear insubstantial, it represented over thirty percent of the entire time the reconstituted jury considered the proofs before it reached a verdict. During that period, the reconstituted jury sent a note to the court which led the court to at least posit that a preliminary vote had been taken.
Further, the original jury had already deliberated for over two hours without the alternate juror and made three requests to review certain evidence, which increased the likelihood that the original jurors may have resolved certain issues, with those incumbent jurors possibly finding it difficult to clear their minds of any progress already achieved. In light of these facts, we refuse to speculate that despite the court's clarifying instruction, the jury did indeed begin deliberations anew, simply because it deliberated for another fifty minutes.
Finally, we conclude the court committed error when it refused to read into the record or mark as an exhibit the jury's note. It is well settled that the "correct technique is to require the jury to put its question in writing, for the judge to place it on the record and to give the attorneys an opportunity to be heard as to the proposed answer, and then to have the jury return to the courtroom to be further instructed accordingly." Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2022); see also United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981) (A trial judge should normally follow a four-step procedure when responding to a jury inquiry: the jury's question should be submitted in writing, the court should mark the question as an exhibit and read it into the record, counsel should be afforded an opportunity to suggest appropriate responses and, if the question addresses a substantive matter, the question should be read into the record in the jury's presence.).
Instead of following these procedures, the court apparently refused to read the note, but nevertheless observed that it would not accept any "preliminary vote" from the jury, which, as defendant contends, suggests the content of the note was communicated to the court, and further that it reflected the advanced state of the reconstituted jury's deliberations prior to receiving the correct model jury instructions. We acknowledge that we cannot determine with any certainty the substance of the jury's note to the court. That lack of clarity, however, should not result in any detriment to defendant, as it was caused by the failure of the court to read the note or mark it as an exhibit, effectively hindering our review.
In light of our decision, we do not address defendant's remaining argument regarding the propriety of the court's jury instructions concerning constructive possession.
Vacated and remanded for a new trial.